WaPo Analysis: Republicans Have Been Trying To Pack Courts For Years

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Republicans have tried to pack or unpack state supreme courts in several states, twice meeting with success.

Amy Coney Barrett’s nomination to the U.S. Supreme Court has brought the subject of “court-packing” to national attention in recent weeks, with Republicans casting Democrats’ talk of possibly expanding and rebalancing the court as a radical change that would politicize the nation’s highest court.

Barrett’s confirmation would solidify a 6-3 conservative majority on the Supreme Court.

But a Washington Post analysis reveals that Republicans have been trying to pack state supreme courts for years, often making no effort to hide their partisan motivation.

The Post highlights a study published earlier this year by Marin Levy, a law professor at Duke University, that “documented court-packing attempts in at least 11 states in recent years.”

Most of those efforts were initiated by Republicans, including the two that succeeded. Moreover, compared with earlier decades, court-packing attempts are now more common and more explicitly partisan.

“The norm against court packing might be more vulnerable than some have thought — at least as it concerns the state courts,” Levy wrote. “If court packing and unpacking were considered strictly verboten, one would not expect to see over twenty different bills to pack and unpack the highest court in eleven different states.”

  • Republicans successfully packed the state supreme courts in Arizona and Georgia in 2016.
  • In Florida (in 2007 and 2011) and Iowa (in 2009), Republican attempts to pack the courts failed, according to the report.
  • In Montana, Republican lawmakers tried but failed to unpack the courts in 2011, reducing the number of justices to afford conservatives a partisan advantage.
  • A similar effort failed in Oklahoma in 2017.
  • And Republicans in Washington made a move to unpack the state supreme court in recent years:

In 2013, in what Levy calls “a particularly dramatic interbranch display of hostility,” Washington Republicans introduced a bill to remove four members from the state’s nine-member Supreme Court, immediately following the court’s overturning of Republican-imposed restrictions on tax hikes. The Brennan Center for Justice characterized the proposal as a threat to judicial independence. Levy notes that while the bill failed, Republicans have periodically attempted to revive it in recent years.

  • Democrats in South Carolina and Louisiana also have tried to pack the courts, finding no success.
  • In Alabama, the Democratic Senate majority leader introduced a bill in 2009 to reduce the number of state supreme court justices but failed.
  • And in Pennsylvania, “state Republicans considered a proposal to reduce the size of the court as part of a larger package that also would have eliminated the office of the lieutenant governor and shrunk the general assembly. It had bipartisan support — a rarity among these cases — but was ultimately not taken up.”

Read the full report.


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